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Looks like LIPA and National Grid are feeling the burn this time.

On Tuesday, February 20, the New York Court of Appeals ruled that the utility companies are not immune from a lawsuit charging them for failing to turn off the power to the peninsula prior to Hurricane Sandy, which played a role in nearly 150 properties burning to the ground during the storm. This ruling clears the pathway for those property and business owners to have their day in court.

In a lawsuit that goes back to 2013, Heeran v. Long Island Power Authority & National Grid alleges that the utility companies failed to cut off the electrical power to the Rockaway Peninsula, despite forecasts for the damaging storm, which led to electrical fires completely decimating homes and businesses in Breezy Point, Rockaway Park and Belle Harbor.

“If LIPA and National Grid acted responsibly in preparing for the storm, my clients would be living in their homes with all of their life’s possessions,” attorney Keith Sullivan of Sullivan & Galleshaw, LLP, said. “Industry protocol and common sense called for de-energizing the electric system. However, LIPA and National Grid chose to keep the dangerous electric flowing into the beachfront communities during the worst storm this area has ever seen without any oversight or monitoring of the lethal electricity.”

The case has been slow to proceed after the defendants, LIPA and National Grid, claimed that they were not liable under the governmental immunity defense doctrine of law. On Tuesday, the New York Court of Appeals, the highest court in the state, ruled in a 6-0 judge opinion, that the utility companies are not immune. This upheld the Second Department, Appellate Division who in a 3-1 decision upheld Queens County, Supreme Court Justice Bernice Siegal’s decision in July of 2014, who also ruled that the defendants were not free from liability.

This recent decision clears the way for a jury trial to proceed in the coming months. According to court filings, the case will be certified as ready for trial on March 9. A trial date has not yet been assigned by the court. The defendants could face as much as $100 million in damages in the case.

The lawsuit alleges that while LIPA was entrusted with the power and authority to distribute the electricity, they passed that responsibility off to National Grid by paying them an annual base of $224 million with various added incentive bonuses to operate and maintain the electrical transmissions.

In ruling against the defendants, Justice Stein wrote in the majority opinion, “We reject defendants’ claim that the magnitude of the disaster, without reference to the circumstances and nature of the specific act or omission alleged – i.e., the failure to de-energize – renders LIPA’s conduct governmental as a matter of law. Inasmuch as defendants have failed to meet their burden to establish that plaintiffs’ amended complaints failed to state viable claims, we hold that the courts below properly denied LIPA’s motions to dismiss.”

The victims, and Sullivan, are clearly pleased with the ruling, even though the issue delayed the case. “Unquestionably, the court reached the right decision. This is a tremendous victory for our clients. Sadly, some of our clients are still not back in their homes and businesses are not yet opened, but the defendants chose to spend five years pushing this invalid defense while interest on the damages continues to accrue by law at nine percent each year from the date of the loss.”